Detailed Answer
1. Overview of Texas Probate and Real Property Sales
In Texas, most real property held by a deceased person passes through probate before sale. Probate may be independent (no court supervision if the will authorizes) or dependent (court-supervised). Under an independent administration, the personal representative has broad powers to sell real estate without a separate court order, per Texas Estates Code §401.002. In a dependent administration, you must obtain a court order authorizing the sale.
2. Court Order or Will Provision Authorizing Sale
If the will does not expressly authorize an independent sale, the personal representative must file an Application for Order Authorizing Sale of Real Property and obtain a signed order from the probate court. The form must identify the property, sale terms, and agree that proceeds become estate assets for distribution.
3. Heir-Specific Forms to Direct Distribution of Proceeds
- Affidavit of Heirship (if no probate docketed). Texas Property Code §5.027 allows title companies to accept an affidavit—signed by two disinterested witnesses and the heir—establishing heirship. It identifies the heir and chain of title so proceeds may clear escrow.
Tex. Prop. Code §5.027 - Distribution Direction (sometimes called “Joint Instructions for Disbursement”). Title or escrow companies often provide a worksheet listing each heir’s name, share percentage, and funding instructions (e.g., bank account, wire instructions). All heirs sign to confirm their respective shares and direct the escrow agent to distribute accordingly.
- Receipt and Release of Claims. After proceeds are disbursed, title/escrow will usually require each heir to sign a receipt acknowledging payment and releasing the personal representative or escrow company from further liability. This form is a settlement release, not codified but commonly used in practice.
- Power of Attorney for Absent Heirs. If an heir cannot attend closing, Texas Estates Code Chapter 751 recognizes a proper Durable Power of Attorney for real estate matters. The agent signs the distribution forms on the heir’s behalf.
Tex. Est. Code Ch. 751
4. Independent vs. Dependent Administration Impact
In independent administration (Tex. Est. Code §401.002), the will’s language controls sale authority. Heirs sign only distribution and release forms—no further court order is needed.
In dependent administration (Tex. Est. Code §401.101), the court enters an order approving the sale and distribution plan; heirs may need to join an agreed motion or waiver confirming they have no objection.
Helpful Hints
- Verify whether the will grants an independent administration power—this saves time and filing fees.
- Ask the title company or escrow agent for their standard “Instructions for Disbursement” form well before closing.
- Use the Affidavit of Heirship only when there is no probated will; it cannot transfer title but helps clear title for the sale.
- Ensure any Power of Attorney is notarized in Texas and specifically authorizes real estate transactions.
- Retain copies of all signed receipts and releases—these protect both heirs and personal representatives from future claims.
- When in doubt, consult a probate attorney to confirm you have the correct forms and court approvals.